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3 strikes and your'e OUT!

by jonah jones / October 8, 2004 9:38 PM PDT

Man who beheaded dog sentenced to 25 years to life

SANTA ANA, California (AP) -- A man who beheaded a German shepherd he had named for his girlfriend was sentenced Friday to 25 years to life under the state's three-strikes law.

James Abernathy, 43, was convicted in June of felony animal cruelty for killing the dog, named Marie, after a fight with his girlfriend.

Abernathy would have faced a maximum of six years if not for two prior convictions in 1986 for assault with a deadly weapon.

i can (vaguely) understand the 3 strike rule, but how much is going to cost to keep him in prison for the MINIMUM of 20 YEARS? for killing a dog?

something wrong somewhere Sad

.

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Re: 3 strikes and your'e OUT!
by null. / October 9, 2004 2:36 AM PDT

Stated in the article was:
James Abernathy, 43, was convicted in June of felony animal cruelty for killing the dog, named Marie, after a fight with his girlfriend.

Abernathy would have faced a maximum of six years if not for two prior convictions in 1986 for assault with a deadly weapon.

Now, in California criminals with a history of repeated violence and convictions for said violence are subject to additional penalty. He is not being punished for 'just killing a dog', he is being punished for his inability to refrain from felonious criminal activity and has been deemed unrepairable thus has been thrown away as the trash he is. The california three strikes legislation works well in keeping repeated violent felons in prison, which is just where I, and the majority of Califonians want them to be, thank you very much.

The question that should be asked is, how much does it cost to not have him in prison for 25 to life? This is the one I deem more important in this debate.

Don Erickson
California Republican and very proud of it!

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Well said, Don
by MarciaB / October 9, 2004 3:11 AM PDT

**He is not being punished for 'just killing a dog', he is being punished for his inability to refrain from felonious criminal activity...**


The pacifists cannot say someone such as this person has not been given a chance. My apologies to the PETA folks who may read this....but....thank God his "number 3" was a dog and not a child or someone else.

You keep screwing up, you pay the price. Pretty simple, IMO.


.

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My question was.......
by Glenda / October 9, 2004 3:17 AM PDT
In reply to: Well said, Don

If this idiot was mad enough to kill a dog NAMED for his girlfriend, was she next???
Glenda

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Re: My question was....... -- Quite possibly, Glenda
by Dave Konkel [Moderator] / October 9, 2004 3:22 AM PDT
In reply to: My question was.......

Murderers (especially serial killers) often start with cruelty to animals, then "graduate" to people.

-- Dave K, Speakeasy Moderator
click here to email semods4@yahoo.com

The opinions expressed above are my own,
and do not necessarily reflect those of CNET!

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Nevertheless, animals aren't people or...
by James Denison / October 9, 2004 3:49 AM PDT

...killing them would be "murder". Animals are possessions, or they are wild. We need to legally leave it that way. Monetary compensation should be paid for the killing of an animal not your own. It should be a civil offense, not a criminal one. This is tantamount to hanging horse thieves.

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Many pet owners would disagree
by Dragon / October 9, 2004 12:59 PM PDT

The value of a pet to its owner far outweighs that of its 'market value'. Many pet owners grieve for the loss of their pets as they would for a relative.

Normally, it would follow that since this was -his- animal, he should have the right to do with it what he pleased. But, for thousands of years, we have cohabitated with cats or dogs, so I guess most people are sufficiently insulted by such a gross act of brutality that they insist a certain degree of punishment is warranted. I agree that that animal cruelty to animals by kids at an early age means they are likely to be violent in the future. Who knows? Maybe the guy in this story had abused animals, before. An analogy would be a thief who is caught -- you have to wonder how many times he may have stolen, already?

I disagree that we should look at this crime against an animal without considering his history. I think he should be declared an habitual offender. We should look at all of his crimes as a pattern of behaviour as they likely to continue. He should be more severely penalized than he normally would.

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Re: Nevertheless, animals aren't people or...
by Dave Konkel [Moderator] / October 9, 2004 1:29 PM PDT

James -- for the reasons I stated, the sentence is appropriate. or do you want to wait until he starts killing people? He's already got two ASW convictions! This guy doesn't need to wandering around free in society, IMCO.

-- Dave K, Speakeasy Moderator
click here to email semods4@yahoo.com

The opinions expressed above are my own,
and do not necessarily reflect those of CNET!

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Dave, Justice says...
by James Denison / October 9, 2004 1:56 PM PDT

....we punish people for what they did do, not for what we think they might do. Your concept would have God tossing Adam and Eve from the garden before they ate the Forbidden Fruit, simply because they were observed eating some other fruit. Your legal concept would have God putting a fence around that tree rather than giving the law and consequences when it was broken. You are supporting punishment not by deed but by extrapolation, based not on fact, but supposition.

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Re: Dave, Justice says...
by Evie / October 10, 2004 12:38 AM PDT
In reply to: Dave, Justice says...

I think that adding in the "warning sign" of animal cruelty to this just confuses the issue. This is a man with two prior convictions for violent acts. This last act demonstrates that he has not changed his violent ways and thus poses a threat to society.

Frankly, I am for less outcome-oriented sentencing and more action-oriented sentencing. IOW, assault with a deadly weapon should carry the same sentence as succeeding in killing the person during the assault. Attempted murder the same as successful murder. I always wanna scream at the TV when watching a show like NYPD Blue where the suspect is in holding and the victim of a violent act is clinging to life in the ER. Then the person dies and they walk into the interrogation room and exclaim "we're talking about a murder charge now". Incarceration has a two-fold rationale -- one is punitive, the other is protection of civil society. Whether or not the victim dies in the hospital doesn't change what the perpetrator did, or his/her propensity to do it in the future. Therefore whether the victim survives or not shouldn't influence the sentence. So perhaps had there been better sentencing on the first violent offense, he wouldn't be walking the streets to commit further violent acts.

Evie Happy

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I tend to disagree
by Diana Forum moderator / October 10, 2004 3:05 AM PDT

I thought it was stupid that kidnapping and murder both carried the death penalty in California. It seemed that the main idea should be to get the victim out alive. If a person was facing the same penalty for both, why not kill the person since the chances of getting caught are less if the witness is dead?

click here to email semods4@yahoo.com

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(NT) (NT) TKY Diana. Like shining a light into a dark place!
by James Denison / October 10, 2004 7:55 AM PDT
In reply to: I tend to disagree
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That's not true, Diana
by Diane Harrison / October 10, 2004 8:12 AM PDT
In reply to: I tend to disagree

There is NO death penalty other than for murders done with "special circumstances" (meaning things like multiple murders, torture, lying in wait, etc.). Kidnapping has never been subject to the death penalty and likely never will be.

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(NT) (NT) It was back in the fifties and sixties
by Diana Forum moderator / October 10, 2004 12:09 PM PDT
In reply to: That's not true, Diana
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I think there are two things here that I would like to...
by Mosonnow / October 10, 2004 6:27 AM PDT

...comment on. The first being the TV orientation. I tend to discount this (not knowing US law) as being their way of saying that they are more likely to get a conviction. Whether this is true in reality I know not, but it usually leads to a confession from someone to avoid implication in the greater crime, thus leading to that needed conviction - on at least some count. IOW the burden of providing sufficient evidence for a conviction becomes greater every day, given the exclusions that can be applied.

The second is whether we should ignore mens rea. Whilst I take your point, I do think that cases should continue to be decided on the circumstances. There is the presumption in law that a man will know the natural consequences of his acts, but the death of a victim might have been neither intended nor a natural consequence. To me, the decision as to intent has to be beyond reasonable doubt as determined and it is not sufficient to suggest that an outcome of an incident excludes such doubt - since this would suggest that crimes could be considered "absolute". History shows many wrongful ("unsafe", we call it) convictions even via the jury system.

For clarity for the benefit of others, the above has no bearing on the case in question.

Regards
Mo

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Jurors don't find out about the strikes until. . .
by Diane Harrison / October 10, 2004 7:12 AM PDT

after they convict on the underlying offense, all of which are still judged by "beyond a reasonable doubt." There is no lessening of the mens rea in any case. As far as the jurors are concerned, this is the first and only crime this person has committed that they are judging now, unless there are other circumstances that allow for admission of prior acts for other limited purposes (and generally only admitted if the defendant testifies).

If the jurors don't convict of a felony or any crime, the strikes are also dismissed automatically, since they only apply to a sustained felony conviction.

The strikes are bifurcated during trial. At the end of the trial, if there is a finding of guilt on a felony by the jury, THEN and only then, are they told that they are not really free to leave yet, and there is a second trial put on to prove up the prior offenses. The defendant has a right to a jury trial on those too, by the same jury, and they usually exercise their right to that. If the jury finds those priors to have been sustained, then they are applied at sentencing by the judge.

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Retried on the same crimes they already had
by James Denison / October 10, 2004 7:38 AM PDT

sentence on? Double judgements? This is going crazy!!!

It's no wonder people out there facing what would normally be a lesser sentence, but on the third offense decide to turn it into a deadly conflict and shootout with the police. You've made it an all or nothing situation for them!

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Re: Retried on the same crimes they already had
by Diane Harrison / October 10, 2004 7:48 AM PDT

They are not retried on the CRIMES from before, but rather the proof of their prior conviction for those crimes. That is not considered a double judgment (no such legal phrase), or double jeopardy (which IS a legal phrase). The law has been run all up and down the courts up to the Supremes, who found it perfectly legal and not violative of any rights.

And yes, they do get real dangerous when they have nothing to lose. But the same people were that dangerous before anyway. It's just more likely the police will have to deal with them than the average citizen when they act out the next time. Not enviable for the police, but far safer than them harming citizens.

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He knows after three strikes he is out.
by Dragon / October 10, 2004 3:02 PM PDT

Sounds like poor impulse control to me, a common attribute of convicts. If he knows he'll be "out" after three strikes, then why did he do it? It wasnt "US" that did it to him, it was he who did it to himself.

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Re: Nevertheless, animals aren't people or...
by C1ay / October 9, 2004 3:28 PM PDT

May we then deduce that you are saying that there should be no animal cruelty laws?

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(NT) (NT) How do you feel about bull fights in Spain?
by James Denison / October 9, 2004 10:46 PM PDT
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What an evasive answer James...
by C1ay / October 10, 2004 12:07 AM PDT

To my knowledge Spain is not under the Jurisdiction of any U.S. Courts or it's laws.

James Abernathy was convicted by a jury of his peers for animal cruelty after he beat his dog and then beheaded it. He had 2 strikes against him for other violent crimes in 1986 for assault with a deadly weapon when he was also convicted for false imprisonment and possesion of a firearm by a felon. These didn't count as strikes in the 3 strikes law for violent crimes.

In sentencing Judge Kazuharu Makino said the punishment was "only appropriate with someone with an extreme history of violence." Abernathy's sister wrote that, when younger, her brother would kill and skin animals, then put them in the refrigerator to shock his mother. This was a violent man who demonstrated his disposition to society repeatedly.

Yes, a man should be able to put down his livestock to feed his family. He should be able to give a quick, merciful death to his pet when suffering. He did neither, he beat his dog in torture and then maimed and mutilated it. Do you feel this is his right as well? Again, are you saying there should be no animal cruelty laws?

Like it or not, he violated California Penal Code 597 which says you cannot maim, mutilate or torture a living animal. Your argument should therefore be against the law itself, not the fact that he was held accountable to it. As long as there is a law on the books, the people should be bound by it...



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(NT) (NT) Well put, Clay!
by Diane Harrison / October 10, 2004 7:14 AM PDT
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Re: My question was....... -- Quite possibly, Glenda
by Glenda / October 9, 2004 4:51 AM PDT

And also what I was thinking, is that when his "HIGH" from killing the dog webbed, he would need another act to "feel good" again:)
Glenda

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I forgot to say.......
by Glenda / October 9, 2004 4:55 AM PDT

that if I was the girlfriend, I would have taken that as a warning that I was next! Who knows maybe us women feel different about this:(
Glenda

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(NT) (NT) Women would find that threatening, yes
by Diane Harrison / October 10, 2004 7:17 AM PDT
In reply to: I forgot to say.......
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(NT) (NT) Seems like men would find this threatening, too
by Diana Forum moderator / October 11, 2004 2:50 AM PDT
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Re: 3 strikes and your'e OUT!
by Dave Konkel [Moderator] / October 9, 2004 3:21 AM PDT

Hi, Don.

This liberal agrees with you in cases such as this. OTOH, when one or more offenses is low-level burglary, hot checks or the like, I have a problem with the three strikes concept. First-degree felonies only should be counted as a "strike," IMCO.

-- Dave K, Speakeasy Moderator
click here to email semods4@yahoo.com

The opinions expressed above are my own,
and do not necessarily reflect those of CNET!

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(NT) (NT) I agree.
by James Denison / October 9, 2004 3:53 AM PDT
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You don't know the law here, DK
by Diane Harrison / October 9, 2004 11:07 AM PDT

The PRIOR offenses MUST be serious or violent felonies to count for strikes, DK. You are gravely mistaken if you think we are just sentencing any old person with prior offenses, no matter how trivial, to life in prison. Prior offenses are generally 1 year enhancements (added on to the sentence given upon conviction of the new crime), or three years for some drug priors, or five years for serious or violent offenses when not used as strikes.

In your example of a "low-level burglary," that person would get, at most, one more year of prison, assuming there was not a five year "wash-out" period between time served in prison, in which case the prior offense would not count at all for additional time. Burglaries are first degree here is for residential burglaries (burglaries of inhabited homes), or vehicles like taxis (occupied, etc.). Breaking into a store or going into a store or other building, not an occupied dwelling or occupied vehicle, for purposes of commiting a theft or a felony therein, is a second degree burglary, which would amount to your "low-level" concept.

Under our current law, even YOUR standards would be too low for the three strikes program. Not all "first degree" types of offenses would count for a strike prior. It has to be a serious or violent offense to count. For a while, even many assaults by means of force likely to create great bodily injury did not count, and even some arsons still do not.

The controversy over three strikes out here, is not over the prior offenses being used, it is over the current case that the person is on trial for not needing to be a serious or violent felony in order for them to have their prior serious or violent felonies used to get a life sentence on the new case. The attempt to change the legislation geared towards making the current offense a serious or violent felony as well in order to apply three strikes, rather than just ANY felony.

The deterrent effect here has been quite good. Their defense attorneys are recommending that their strikes clients move to another state when they get out of custody after one strike (the next offense doubles whatever punishment they would get on their new case, and the one after that makes it life).

Any guy that is going to kill a dog like that (particularly one named after his girlfriend) after he has other ADWs, has earned the right to his third strike.

I've never seen the reasoning behind people who think that it is okay for them to have a bad day and go home and kick the dog anyway. "it's just an animal," is a rather sick mentality, as far as I am concerned. And contrary to James' position that animals are chattels, they are protected by law so that nasty people can't abuse them with impunity here, just because they feel like it. Slaves and "********" used to be considered "non-humans" and even chattels in the 1800's. I think it was even as late as 1897 or 8 here, that ******** under the California Penal Code, were considered to be "non-humans." It's obvious now that it was not okay to hurt or kill them then either, but that didn't stop people from doing it when the law let them get away with it. When they're too dumb and nasty to figure it out for themselves, we need to lock them up for the sake of the rest of us.

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So you agree with a conviction based upon...
by James Denison / October 9, 2004 12:09 PM PDT

...the name of the dog and the manner of disposal of that man's property. Where has common sense fled to from California?! Who gives a darn what the name of the dog was?! What if it had been named for his prior girlfriend? Would that be something to deeply consider as a means to prosecute someone? I'm sure you could find yet another whacked psychiatrist at the right remuneration to pour a little of his snakeoil on it and twist it around into something. Facts of the case; He killed his dog. Everything beyond that is innuendo, speculation, and making more of it than it was.

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